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J.E.V v. K.V

June 21, 2012

J.E.V., PLAINTIFF-RESPONDENT,
v.
K.V., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Mercer County, Docket No. FM-11-384-06.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: January 25, 2012

Before Judges Cuff, Lihotz and Waugh.

The opinion of the court was delivered by CUFF, P.J.A.D.

In this appeal, the dependent spouse argues that the trial judge erred by awarding limited duration alimony rather than permanent alimony. We reaffirm established principles governing the award of limited duration alimony, which consider the length of the marriage, the period of economic dependency during the marriage, and the skills and education necessary to return to the workforce rather than an overriding emphasis on the marital lifestyle and the ability to replicate the marital lifestyle at the end of the chosen term. Applying these principles and the well-supported finding that the mental health problems affecting the supported spouse will not interfere with her ability to obtain and sustain employment, we affirm a ten-year period of limited duration alimony.

The parties were married on March 17, 1996. Their marriage endured for over nine years. They have two children. Their oldest daughter was born in May 1998; their youngest daughter in May 2001. One child attends public school; the other attends a local private school.

At the time of trial, plaintiff J.E.V. was forty-four years old and defendant K.V. was thirty-seven years old. They first met in 1994 when plaintiff was a dermatology resident at medical school in Texas. At that time, defendant was a recent college graduate with a degree in recreation and tourism.

After graduation, defendant earned approximately $28,000 a year as a sales representative for a national payroll service.

The couple lived together for one year, married, and then moved to California so plaintiff could participate in a one-year fellowship. Defendant continued to work for the same firm in California earning up to $65,000 annually.

Plaintiff accepted a position as director of surgical service at a major hospital in central New Jersey, where the couple relocated. Defendant continued to work for the same firm in New Jersey, but left the firm because of the breadth of the territory assigned to her. She took a position as a pharmaceutical sales representative, separating from employment when she became pregnant.

Plaintiff opened his own dermatology practice in central New Jersey in July 2001. He focused on a sophisticated surgical procedure used to remove skin cancer. Defendant became involved in numerous charitable and fundraising events and sought to promote her husband's practice. She also performed market and demographic research geared toward the opening of the practice. When the practice opened, she worked as office manager and administrator.

Plaintiff testified that defendant was initially in charge of the finances, submitting all billing forms to the billing service, hiring, firing, and public relations. After about six months, plaintiff and defendant hired an office manager and defendant became the overseer of the office manager and remained in charge of most of the financial aspects of the practice until the parties separated. Plaintiff claimed defendant worked on billing about one hour per night and worked about twenty hours per week in total for the practice.

Following the birth of their oldest daughter in May 1998, the parties hired a full-time nurse and then a full-time nanny to care for the child. They purchased a house close to plaintiff's office in March 1999. When their second child was born in May 2001, the parties hired a second full-time nanny, who was also a housekeeper, and also a part-time weekend nanny.

Defendant has a history of mental and emotional problems. Starting in 2002, she began to experience a great deal of anxiety. She began seeing a psychiatrist in early 2003. He diagnosed her with mania and anxiety and prescribed three medications to help manage her condition. Defendant changed doctors in early 2004. Her new psychologist and members of his practice altered defendant's medications. Starting in Fall 2005, defendant was hospitalized three times.

Defendant's treating psychiatrist diagnosed her with bipolar disorder. She also had symptoms of borderline personality disorder. Defendant testified that the side effects from her medications could produce dry mouth, a lisp, dry eyes, dizziness, gastro-intestinal upsets, weight gain, irritability, and suicidal thoughts. She stated that when she experienced unpleasant side effects, she stopped taking her medication, then conferred with her treating doctor to adjust the medications. Plaintiff did not dispute defendant's struggles with bipolar disorder and her course of treatment.

Defendant's psychiatrist testified that she might be able to get a job but expressed reservations about her ability to retain a job. Her biggest problem in maintaining a job was her mood swings that were related to the level of stress she experienced. He concluded that within a reasonable degree of medical certainty it was questionable whether she would be able to sustain gainful employment at that time. He further opined that the key to her ability to sustain employment in the future was an appreciable change in her emotional status.

The psychiatrist also testified that eighty to eighty-five percent of the patients he treated with bipolar disorder worked. He explained that defendant experienced both depressive and manic episodes. He testified that defendant sometimes stopped taking her medication or changed it herself, which was not unusual in bipolar patients. Defendant also refused to take Depakote and Lithium, the medications of choice for bipolar patients, because they made her gain weight.

Defendant's vocational expert reported that defendant had difficulty focusing and was deeply troubled by the test-taking portion of an employability analysis she asked defendant to perform. She found defendant's "fragility supersede[d] any ability to quantify an earning capacity for her." She also concluded that defendant was unemployable and was unable to work. By contrast, plaintiff's employability expert testified that defendant's past employment history and her demonstrated success in those positions permitted her to obtain employment as a sales representative, secretary, or general office clerk. He described her as "neat, very well-dressed, very pleasant, outgoing, personable during the interview" and her presentation influenced his opinion because "appearance . . . can certainly have an impact on a potential employer." He also testified that defendant informed him of her health concerns but she did not provide a physician's opinion to verify her self report. He noted, however, defendant demonstrated to him that she was not interested in employment. He concluded she was capable of reentering the job market and earning $45,000 to $55,000 per annum.

Judge Jacobson awarded defendant limited duration alimony of $25,527 per month for the first two years and $23,403 per month for the next eight years. She ordered alimony to cease in August 2019, when the youngest child turns eighteen and presumably enters college.

In setting the type, term, and amount of alimony, Judge Jacobson considered the thirteen alimony factors set forth in N.J.S.A. 2A:34-23(b). The judge found permanent alimony was not warranted in light of the intermediate term of the marriage, defendant's age, her failure to prove a permanent disability, her ability to earn income in the future, and her success in past employment endeavors. The judge found that defendant could earn approximately $35,000 annually and would also have unearned income from the cash portion of her equitable distribution award. She also found that defendant had not deferred any career goals.

The amount of the award was based on defendant's budget. The judge included in this amount a monthly savings allocation of $2300, the $2982 monthly mortgage payment, and an income tax reserve. She also recognized that defendant will receive $10,000 monthly in child support and plaintiff will assume all educational, extra-curricular, camp and medical costs.

Defendant also received an equitable distribution award approximating $650,000. Finally, the judge also awarded defendant counsel fees, expert fees, and costs ...


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